Has OSHA Forgotten How to Issue Standards?

In my post Monday, I wrote that breathing diacetyl, the chemical in artificial butter flavor, is killing and crippling workers around the country. It is now more than six years since the US Occupational Safety and Health Administration (OSHA) was first notified that workers in a popcorn plant in Missouri had developed the terrible and sometimes fatal lung disease bronchiolitis obliterans.

In response, the agency did send an inspector to the facility, but OSHA’s Area Director concluded that OSHA could not issue a citation since the agency had no standards on the chemicals in artificial butter flavor. No standard means no standard violated. (Never mind that OSHA has standards on fewer than 500 of the thousands of chemicals used in today’s workplace).

Since then, more and more cases of “diacetyl lung” have been documented in numerous plants where diacetyl is manufactured, mixed or applied to food. OSHA, however, has done virtually nothing to address this problem and the dangerous exposures continue. The sordid history can be read at the website of the Project on Scientific Knowledge and Public Policy (SKAPP).

It doesn’t have to be this way. Let’s look at how OSHA responded to outbreaks of “new” occupational illnesses in the past. A good example is vinyl chloride. During the Administration of Republican President Gerald Ford, this important chemical was discovered be a human carcinogen. Here are some key dates in the regulation of vinyl chloride:

January 22, 1973
The BF Goodrich Co. reports to NIOSH that, over the previous six years, several workers at their Louisville, Kentucky vinyl chloride plant had developed the rare cancer angiosarcoma of the liver.

February 9, 1974
NIOSH disseminates information about the cases, and the newly discovered occupational illness, to the nation’s physicians through CDC’s weekly Morbidity and Mortality Weekly Report.

February 15, 1974
OSHA holds fact-finding hearing in which some of the world’s leading occupational health experts (including Irving Selikoff, Tom Mancuso, and Cesare Maltoni and Tony Mazzocchi) testify.

May 10, 1974
OSHA issues proposed final standard for exposure to vinyl chloride.

June 25, 1974
Hearings on final standard begin.

October 4, 1974
OSHA issues final standard.

January 4, 1975
US Court of Appeals upholds final standard.

April 1, 1975
Final OSHA vinyl chloride standard becomes effective.

In short, OSHA used the tools provided in the OSH Act to issue standards that successfully protected workers from a toxic exposure associated with a serious disease.

(Of course, OSHA had to overcome the industry’s well-organized opposition to the new standard. In addition, the plastics manufacturers tried to hide information which, if given to NIOSH, might have resulted in earlier discovery of the angiosarcoma cases. This sordid history is extensively chronicled by historians Gerald Markowitz and David Rosner in their unforgettable book Deceit and Denial: The Deadly Politics of Industrial Pollution.)

There are a few notable parallels between vinyl chloride and diacetyl: an alert physician identified the first cases; NIOSH reacted quickly and launched investigations that documented similar clusters of disease at other plants with the same exposures. The medical community was put on notice of the existence of both the newly discovered occupational illness through the CDC’s Morbidity and Mortality Weekly Report.

Unfortunately, that’s where the similarities end.

With vinyl chloride, OSHA reacted swiftly to halt workers’ exposure to the carcinogen. In less than a year, the regulations were in place to protect the health of thousands of exposed workers.

With diacetyl, it’s been more than six years since OSHA learned of the first cases. At least three workers have died, at least 10 are waiting for lung transplants, and pulmonary physicians have diagnosed scores of other workers with impaired lung function or worse, bronchiolitis obliterans. (We have a full chronology on the SKAPP website.)

And what is OSHA’s response so far? Well, its Kansas City regional office had a short-lived alliance with The Popcorn Board (starting in September 2002 and ending in February 2003), but there’s no evidence to show how it did much to reduce diacetyl exposure. A search of OSHA enforcement data reveals little if any effort to inspect workplaces with diacetyl-exposed workers.

And, four months after receiving a petition for an Emergency Temporary Standard from the United Food and Commercial Workers Union and the International Brotherhood of Teamsters, OSHA told us it is “still evaluating” the request.

For me, the answer is abundantly clear: right now, workers in commercial bakeries, snack food plants, candy factories and more are at significant risk of developing a disabling and deadly lung disease. We know enough about the hazard to demonstrate a risk, and feasible controls are available to reduce the risk. In a nutshell, that’s what the OSH Act requires.

I know things have changed since the 1970s, and federal rule-making has become more complicated. But this one is easy, if only OSHA had the will to act.